Houston DWI Law Blog : Houston DWI Lawyer & Attorney : Johnson Johnson & Baer Law Firm : Texas DUI Defense & Criminal Law

According to reports, Hofstra's men's basketball coach Tim Welsh resigned only 3 days after he was arrested and charged with DWI.  The question that I ask, "Why, why would you resign after only an allegation of Drunk Driving?"

"The university accepted the resignation in the best interests of the university and of the men's basketball program," Hofstra spokesman Stephen Gorchov said in a statement.  According to the report, Welsh was to be paid $3 million over the next 5 years.

Was this really a resignation from someone charged with DWI or did the University force him to resign.  My guess - the University forced him to resign pursuant to some morality clause in his contract, though that was not in any report I have seen.  This begs the question, "Is an arrest for DWI really a morality issue."  There have been coaches that have certainly survived a DWI arrest and conviction.  Let me know your thoughts on this issue.

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I have heard police officer after police officer testify that a DWI client really is not arrested for DWI until the DA makes a decision to charge them with DWI.  My clients have told me that the police sometimes tell them, "It (the DWI arrest decision) is out of my hands, it's up to the DA."

Let's set the stage.  Client is pulled over for speeding on Loop 610 here in Houston.  The Houston Police officer approaches client and claims he smells alcohol.  He does the HGN and guess what - he sees 6 of 6 clues.  He then has the client do the walk and turn test and claims he observes 2 of 8 clues (video would show differently).  Client then was asked to do the One Leg Stand and scored a whopping 1 out of 4 clues (for those that don't know - that is a passing score).  After this terrible performance on the field sobriety tests, the officer arrests client and takes him to the jail.  By the way, there is no allegation of drug use in this DWI arrest.

Here is the kicker.  At the jail he asks for a breath test and again my client cooperates fully.  He blows a whopping .026 less than 45 minutes after he was "operating" his motor vehicle.  The legal limit is .08.  While I'm not a mathematician, I do know that .026 is a lot less than the legal limit of .08. 

Presumably, if the cops tell the truth on the witness stand (see first paragraph), the arresting officer called the district attorney's office to have the DWI charge approved.  I would like to assume that the police officer told the truth about the excellent performance on the field sobriety tests and the breath test.  I would also like to assume the prosecutor used his best judgment and made the call he thought was right.  I guess that is why we need jury trials?

So where does that leave us?

Innocent people are being arrested for DWI in Houston, Texas.

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A Wisconsin caller dials 911 to report a drunk driver - the conversation with dispatch is a s follows:

     Caller: Somebody's really drunk driving down Granton Road."

     Dispatch: Okay are you behind them, or...

     Caller: No, I am them.

     Dispatch: You am them?

     Caller: Yes, I am them.

     Dispatch: Okay so you want to call and report that you’re driving drunk?

     Caller: Yes.

Dispatch then asked the caller to pull over and turn the car off, which she did.  Police officers arrive and arrest the caller for Driving While Intoxicated / Drunk Driving.  According to reports, the caller's breath test was over twice the legal limit.

As Jamie Spencer points out, let's hope she gets credit from the prosecutors for "doing the right thing."  Knowing the system and how it works, I doubt the prosecutors will give her any credit for doing the right thing.

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The Supreme Court refused to hear a drunk driving case from Virginia.  Chief Justice John Roberts wrote a dissent to the decision not to hear the DWI case in which he says the lower court ruling will "grant drunk drivers one free swerve" that could potentially end someone's life.

In the underlying DWI case, the defendant was convicted of driving while intoxicated.  The evidence at trial was the driver was pulled over after a motorist called in a drunk driver.  The officer did not personally observe any traffic violation before stopping the driver.  The case was appealed to the highest court in Virginia and was ultimately overturned because of the stop.

In his dissent, Chief Justice Roberts goes on to say,

The stakes are high. The effect of the rule below will be to grant drunk drivers 'one free swerve' before they can be legally pulled over by police.  It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.

Isn't this exactly what is required for a valid stop.  The officer must state with particularity the reason for the stop - the observations he/she has made prior to pulling someone over.  The 4th Amendment to the Constitution of the United States protects each and every one of us from unreasonable searches and seizures.  Chief Justice Roberts - BELIEVE IT OR NOT, THE CONSTITUTION APPLIES TO DWI / DRUNK DRIVING CASES ALSO. 

It seems like people, even Supreme Court Justices, don't think the United States Constitution should apply to driving while intoxicated cases.  I guess I am just a strict constructionist that believes the Constitution should apply equally to all cases.  If the police don't follow the rules, the evidence is no good.

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According to an ESPN report, Detroit Tigers GM was upset with Miguel Cabrera after learning that Cabrera had become intoxicated during the final weekend of the baseball season.  Not only was it the final weekend of the season, the Tigers were in the hunt for a playoff spot that they ultimately lost to the Minnesota Twins. 

A little more background is needed - not only was he intoxicated (over 3 times the legal limit), but the police were called to the scene of an altercation that Cabrera was allegedly involved in.  Police then released Cabrera to staff members of the Tigers organization.

Is the Tigers front office justifiably upset with Cabrera for getting intoxicated during the final weekend of the season?  Would it be any different if the incident have happened earlier in the season?  If the Tigers were not in the playoff hunt?

For what it is worth, the baseball season is a long season.  I think it is ridiculous to ask a baseball player to refrain from alcohol for the season.  With this being said, it is not  justifiable or excusable to become intoxicated to the point that police are needed to respond to an altercation.  The timing of Cabrera's intoxication and altercation on the last weekend of the baseball season while the Tigers were in the playoff hunt is just plain stupid.  If he had just gotten drunk, stayed home and had no run-in with police, I would say the Tigers would be off-base in being upset with him.  However, when you involve your employer in you personal life by asking them to pick you up from a drunken encounter with the police, your employer has every right to be pissed-off at you. 

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The simple answer is, Yes.  According to the Harris County Office of Court Management statistics, in 2008 there were 1100 Houston DWI cases dismissed.  Simple advice - hire a Houston DWI attorney that devotes the majority of his/her practice to defending Texas DWI cases.

As a Houston DWI lawyer responsible for many of these DWI dismissals, I know that there are a plethora of reasons that these DWI cases are dismissed.  However, at the root of just about every one of these DWI dismissals is a competent and dedicated DWI attorney that is fighting each and every step of the way. 

HIRE A QUALIFIED DWI LAWYER - QUESTION YOUR LAWYER ABOUT HIS/HER EXPERIENCE - ASK THE TOUGH QUESTIONS

You can rest assured that the DA's office is doing everything they can to convict anyone arrested for DWI in Houston, Texas.  You must have someone just as dedicated to fight for you if you have been arrested for DWI.  That advice again, HIRE A COMPETENT DWI LAWYER.

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Seems like the simple answer would be, "Sure, no problem."  However, Canada, unlike any state in the United States, considers an arrest and conviction for DWI, DUI or drunk driving a felony offense.  In the all US states, a first time offender for DWI is a misdemeanor offense unless there are aggravating circumstances (death involved, serious bodily injury, child passenger, etc.).

If Canada knows about your DWI (whether the case is still pending or you have been convicted of the DWI /DUI), they may not allow entry into Canada.  We have heard of US citizens being refused entry into Canada because of the DWI / DUI arrest with no conviction.  In fact, we have been informed that there have been US citizens that have flown into Canada only to find out that they must immediately board a plane and return home.

If you have a DWI conviction and are planning a trip to Canada and live in the Houston area, call a Houston DWI lawyer to discuss what needs to be done to gain pre-approval to travel to Canada before being denied at the border.

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Our firm represented a client in Dallas today.  While I was driving home from the airport, I saw a large billboard that said that the average DWI arrest in Texas costs $17,438.  I have seen this figure before and it seems about right based on our experience in DWI cases.

There are fines of up to $2,000 for a first time offender as well as surcharges on your Texas Driver's License of up to $6,000.  These costs are in addition to probation fees, increased insurance premiums (assuming you don't lose your privilege to drive), and court costs that can be as high as $500.  

I guess the government or whoever is responsible for funding the billboard are trying to use this as a deterrent to people driving while intoxicated. 

But, what about the people that are falsely arrested for DWI or those that are ultimately found to not be intoxicated?  Even more of a reason to hire a DWI lawyer that devotes the majority of his/her practice to defending DWI / DUI cases.

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According to a former Houston Police Department DWI task force member, HPD is in the process of hiring and training civilians to assist in Houston DWI investigations.  These civilian "helpers" will be trained to perform field sobriety tests and also trained to operate the breath test machines. 

This means these civilians, not police officers, will be aiding and making decisions to arrest our citizens.  Who do you think will be signing up and interviewing for the civilian positions?  Probably those people with the biggest ax to grind and those that are affiliated with MADD and other organizations like MADD.   FYI - this is not a criticism of MADD.  I'm just not sure we as citizens want people with an agenda making decisions to arrest our citizens. 

Based on my experience as a Houston DWI lawyer, it just doesn't pass the smell test to let civilians make these type of life altering (for the person arrested for DWI) decisions.  Even though we all know that cops are not always without bias, at least they have been to the police academy and are suppose to be neutral observers - not advocates.  What's next?  Are we going to let civilians start making traffic stops?  Drug raids?  Prostitution Stings?

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I had a motion to suppress scheduled for a hearing last Thursday in Harris County.  The hearing was scheduled to determine the admissibility of blood results from a hospital blood draw in my Houston DWI case.  I show up and approach the Judge with the prosecutor that was handling the case.  The following is the dialog that transpired:

Prosecutor:  Judge, this is the case we talked about yesterday.

Me:  Judge, I don't remember being a party to that conversation.

Judge:  I don't remember anything about a conversation about this case.

The problem is, there is not suppose to be any communication between the Judge and a party to the lawsuit without the other party being present.  These are the rules that we are all suppose to play by.  Unfortunately, not all of the Judges, prosecutors and I'm sure defense lawyers always play by those rules.  All I ask for in my profession is a level playing field where everyone follows the rules - including prosecutors and most importantly Judges.

So what was the outcome of the hearing you might wonder?  The case was reset for the second time at the request of the prosecutor over our objection both times.  Go figure.

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As has been widely reported,  former Texas A&M head basketball coach Billy Gillispie arrested for DWI / DUI in Kentucky.  Gillispie was arrested approximately 30 miles from Lexington, where he most recently coached the Kentucky basketball team.

According to reports, Gillispie was pulled over for after police received a call of a possibly intoxicated driver that was driving erratically.  The report states that claims he had trouble with his insurance card and that he was confused about the car locks and glove box.  The report goes on to say that Gillispie refused to volunteer for a breath test or blood test.

Gillispie, just like everyone here in Houston charged with DWI, is presumed to be innocent.  Do you think that most that begin to read this article or any other reports of his arrest really presume him to be innocent or do they just assume that because he was charged, he must be guilty?  As a Houston DWI lawyer, I unfortunately think the former is true.  Even though there is a Constitutional Presumption of Innocence, I don't think many in Houston or the rest of the United States really gives much credence to that presumption.  I firmly believe  that he has probably already been convicted in the mind of the public.

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I ran into a lawyer friend and colleague, Mark Bennett, at the Harris County courthouse and we were discussing Harris County DWI arrests and conviction rates.  Mark Bennett writes:

94.5%. That’s the fraction of the 713 people in Harris County whose cases were resolved in the first five months of this year after they refused to plead guilty who beat their cases—got them dismissed or got acquitted.

Wow, this is an amazing number that surprised me when I heard it.  The number, unfortunately, is directly related to the DWI lawyer that you hire to represent you in your DWI.  What do I mean that the number is related to the attorney you hire.  Well, there are many lawyers that represent clients on DWI cases that never go to trial on those DWI cases and never require the government to produce witnesses and provide evidence.  If you are looking to challenge your DWI and win your case, you need to hire a lawyer that is going to go the distance with you and have a jury trial if necessary to protect your DWI rights. 

There is an old phrase out there, "Good things happen when you go to trial."  If you stand in front of a Judge and plead guilty to a DWI, you are 100% of the time going to be found Guilty.  According to the statistics, however, if you stand up and say "Not Guilty" you have a great chance of winning your Houston DWI case.

Image: Eleutheromanic

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I was at dinner with my family last night and saw on the MSNBC ticker that New York Representative Peter King openly criticized Michael Jackson after his death, labeling him a "pervert", "child molester" and a "pedophile."  

Today I have had the Michael Jackson Farewell on in the background and heard Houston Representative Sheila Jackson Lee speaking.  Fortunately, there are at least some in the House of Representatives that still fully understand what our Constitution means.  During her remarks, Jackson Lee paraphrased our Constitution saying, "We are innocent until proven otherwise." 

Hey Mr. King, what crime is it that Michael Jackson was found guilty of?  Oh yeah, he never was convicted of any crime.  In fact, he was acquitted in 2005 of the charges of molesting a child.  I guess that is just not good enough for you.  It sure is a good thing that our founding father's gave us the Constitution to protect our rights and that we do not rely upon lawmakers like Mr. King.  Mr. King - great forum and timing on the criticism of Michael Jackson.

Unfortunately, as a Houston DWI Attorney, I see jurors on a regular basis in my DWI cases that have similar views.  Many of these jurors believe that where there is smoke there must be fire and that because an officer arrests a suspect for DWI they must be guilty.  This is simply not true.  Based on my 12 years of lawyering experience, it is my opinion that more people are falsley accused of drunk driving, DWI and DUI than any other crime.

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